Dr. T. E. A Salubi V Mrs. Benediata E. Nwariaku (2003)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C. 

The action to which this appeal relates concerned the estate of Chief T.E.A. Salubi (“the deceased”) who died intestate on 19th September, 1982 survived by his widow who he married under the then Marriage Ordinance, two children born of him by the said widow and two other children born of him out of wedlock but whose paternity he acknowledged and who were in his life time raised in the matrimonial home with the consent of his lawful wife who accepted them as children of the family. The deceased had a successful career in the civil service and was a minister in the then Midwest State. He died leaving a rather substantial estate comprising, inter alia, of landed property in Ovu, his hometown, Lagos, Sapele, Warri and Benin.

Dr. T. E. Salubi (“the 1st defendant”) was the first son of the deceased. Upon the death intestate of the deceased, letters of administration were on 14th June, 1985 granted to his widow and the 1st defendant. However the former declined to be an administrator of the estate. Dissatisfied with the manner in which the 1st defendant had been managing the estate of the deceased the eldest surviving child of the deceased, Mrs. Benediata Nwariaku (“the plaintiff’) for herself as beneficiary of the estate of the deceased sued the 1st defendant claiming:

“1. Orders to set aside the letters of administration granted to Dr. Salubi and that the estate of the deceased be distributed to all the beneficiaries of his estate “in accordance with Administration of Estates Law and the Marriage Ordinance Law which governs the estate of person whose marriage is governed by the Ordinance law; and other relevant applicable laws,” and

“2. An order compelling the Probate Registrar (“the 2nd defendant”) “to effect the distribution of the estate of the late Chief T.E.A. Salubi to all beneficiaries under his estate as ordered by court.”

The particulars of the landed properties comprised in the estate were set out in the amended statement of claim with averments that the widow of the deceased was entitled to the matrimonial home and some properties of the deceased at Victoria Island, Lagos and at Airport Road, Benin City. The plaintiff averred that the properties be given to her mother, the deceased’s widow, “as part of the two third share of the estate of her father and on the ground that these were properties jointly financed by her mother and her late father.” She proffered suggestion as to the distribution of the rest of the estate.

The plaintiff’s case was that the deceased having contracted a marriage under the Marriage Ordinance was not a person to whom native law and custom applied with the consequence that his widow was entitled to two-thirds share of his estate. The 1st defendant’s case, on the other hand, was that the deceased being and having lived as an Urhobo Chief and having died intestate as a matter of deliberate choice as an Urhobo chief, his estate devolved to be

distributed in accordance with Urhobo native law and custom under which the 1st defendant as the deceased’s eldest son inherited the deceased’s estate which he could distribute at his discretion.

The trial Judge found that the estate was not to be administered in accordance with either the Administration of Estates Law or native law and custom but as provided for in section 36(1) of the Marriage Ordinance, referred to in the judgments of the lower courts as Act. He preferred the enactment to native law and custom because the deceased and his widow had married in 1932 under the Marriage Ordinance and the deceased was thereby “no longer a person to whom native law and custom is applicable, because by his conscious volition, he has Anglicanised himself and obviously opted out of native law and custom of Ovu people.” He preferred section 36(1) of the Marriage Act (Ordinance) to the Administration of Estates Law because, as he put it, “the Marriage Act as Federal Law is superior and overrides the State law dealing with Administration of Estate of persons dying intestate.” Applying section 36(1) of the Marriage Act, he found that the deceased’s widow was entitled to one-third of the estate and his children to the remaining two-thirds. The learned trial Judge identified the properties comprised in the estate and proceeded to distribute same, allocating properties in Victoria Island, Lagos and one in Benin City to the widow “as forming roughly, one-third of the said estate” and sharing the rest among the deceased’s children. In the event, the trial Judge set aside the letters of administration granted to the 1st defendant and ordered the 2nd defendant, the Probate Registrar, to “give effect to the quantum of distribution” which he had stated.

The 1st defendant appealed to the Court of Appeal while the widow of the deceased after duly obtaining leave of the court cross-appealed. Akintan, JCA, who delivered the leading judgment of the Court of Appeal held that the applicable law for the administration of the deceased’s estate was “English Law as stated in section 36(1) of the Marriage Act, Cap. 115.” He reasoned that:

“… since there was no express provision repealing the provisions of section 36 of the Marriage Act in the Administration of Estates Law of Bendel State, 1976 and the fact that the principle of law set out in the aforementioned section 36 of the Marriage Act has long been in force in Nigeria for many years as already shown by decided cases on the subject-matter, it is improbable that the legislature had the intention of replacing the age long principle of law set out in the said section 36 of the Marriage Act without express and unequivocal provision to the effect in the Administration of Estates Law, of Bendel State, 1976.”

Applying section 39(2) of the 1979 Constitution, he held that the two issues of the deceased born out of wedlock during the subsistence of the marriage, were entitled to share in the estate of the deceased equally with the two issues of the lawful marriage. Some of the other issues pronounced upon by the court below were that the jurisdiction of the High Court of Bendel State (as it then was) was properly exercised to try the action, notwithstanding that the letters of administration was in respect of properties within the State while the estate included landed properties outside the State and, that the action was properly constituted even though some of the beneficiaries were not made parties. There is no reasonable ground to disagree with any of those conclusions.

It is evident that the main issue in the case was as to the applicable law for the distribution of the estate. As has been noted, the plaintiff claimed a declarationthat the estate was to be distributed “in accordance with Administration of Estates Law and the Marriage Ordinance Law (sic) which governs the estate of person whose marriage is governed by the Ordinance Law; and other relevant applicable laws” while the 1st defendant had contended that the estate was governed by Urhobo Native Law and Custom or in the alternative the Administration of Estates Law but not English Law. The main point of disagreement was thus whether the estate was to be distributed in accordance with English Law or Urhobo native law and custom, both parties having accepted a common alternative position that if neither English law nor customary law was applicable, the estate fell to be distributed in accordance with the Administration of Estates Law of the Bendel State of Nigeria. It was because the trial Judge and the court below had ignored this common alternative position that unnecessary appearance of complexity had been introduced into an otherwise straight forward matter when the trial court and the court below proceeded to emphasize at undue length the question whether section 36(1) of the Marriage Ordinance or Act was applicable and whether section 49(5) of the Administration of Estates Law was inapplicable.

The Marriage Ordinance was enacted in 1914 and by its long title was an Act to make provisions for the celebration of marriages. It was one of the statutes included in the Laws of Nigeria 1948 where it was Chapter 128 and the Laws of the Federation and Lagos 1958 where it was Chapter 115. The Marriage Act as retained as Cap. 218 of the 1990 Laws of the Federation of Nigeria (“LFN”) did not contain the provisions quoted and referred to as section 36(1) of the Marriage Act in the judgments of the trial court and of the Court of Appeal because that volume of LFN contained federal statutes only in consonance with the legislative list in the Constitution. Between 1914 and 1958 Nigeria passed through several constitutional phases, progressing from a unitary to a federal system of government with consequential apportionment of legislative powers between the Federal legislature and State legislatures. In the Exclusive Legislative List were matters which only the federal legislature is competent to legislate upon and in the Concurrent Legislative List were matters within the legislative competence of both the federal and state legislature, while residual matters were within the legislative competence of the state legislature alone. Thus was the emergence of ‘regional’, [now ‘State’] laws. While the formation, annulment and dissolution of marriages other than marriages under Islamic law and customary law including matrimonial causes relating thereto were by item 23 of the Schedule to the 1960 Constitution and Item 60 of the Second Schedule to the 1979 Constitution within the Exclusive Legislative List to be dealt with in Federal laws, succession was neither in the exclusive nor in the Concurrent Legislative List in the Schedule but was a residual matter in the exclusive legislative competence of the States to be dealt with in State laws.